STATE REPRESENTATIVE
PAUL C. CASEY

Room 473-B
State House
Boston, MA 02133
Telephone: (617) 722-2230
District Office
585A Main St.
Winchester, MA 01890
Telephone: (617) 721-7285 or (617) 438-7185

A View from the Hill

FOR IMMEDIATE RELEASE: April 12, 1999
CONTACT: Tom Nolan (617) 722-2240 e-mail: Thomas.Nolan@state.ma.us

LET'S STOP WAVERING ON RIGHT TO UNFURL FLAG

Our county's flag is a unique national symbol. Like the flags of other nations, it is the physical embodiment of our sovereignty and history of independence. But as our nation is unique among all nations, so too, is our flag unique among all flags. Interwoven with the swaddling symbol of the Stars and Stripes are the central tenets of our nation collectively declared in the Constitution. We need read only the first three words of that document, "We the people" to understand the profound difference between the government of the United States and the traditional view of government power. Rather than controlling from above, government in the United States derives its power from the people, in whom such power is inherent. It is the people of the United States who are the true sovereigns, and it is the sovereignty of the people that is represented by the white stars in the blue field on our flag.

While we often take for granted the values intrinsic in the American flag, the freedom our flag engenders is not overlooked when Americans are threatened, as in Africa last summer, or in these current times of international conflict. It is during these times that we reveal our true patriotism and recognize those men and women who sacrifice so much, even their lives, to protect our shores and maintain the tenets of "free society." One of the most basic, yet extremely important ways many express support for their country and its ideals, is by unfurling "Old Glory" outside their home.

It is ironic, then, that in the midst of our escalating involvement in the Kozovo crisis, the legislature's State Administration Committee heard H.3565, An Act to Accommodate the Patriotic Expressions of the Citizens of the Commonwealth. The bill, which I refiled again this session, is the product of the stalwart determination, hopeful cooperation and unfettered patriotism of a few of my constituents which began nearly five years ago.

It was then that I was approached by two individuals concerned over their inability to fly the American flag outside their condominium unit without the threat of a fine. As it was, the condominium association regulations prohibited the flying of any flag from the exterior of a unit, without exception. Today, the association has loosened the strict enforcement of the regulation, and has permitted the flying of the flag on certain designated holidays. Yet, the threat of a fine remains and other associations could and may already be imposing strict enforcement policies. In fact, after first filing the bill years ago, we heard from several unit owners of other condominium associations located around the Commonwealth who were confronted with similar prohibitive regulations. The issue, then, remains ripe for future abuse and unscrupulous discretion.

In short, H.3565 would amend the current laws governing condominium associations by affirmatively allowing residents to display a portable, removable flag of the United States or the Commonwealth to the exterior of their unit and prohibiting the adoption or enforcement of any restriction to curb the exercise of that right. While the bill has been received with some skepticism, if passed, it would not be the only existing law of its kind. At least three other states, including Delaware, California and Florida all have laws on their books addressing this very issue and extending the right to fly the flag to condominium owners. H.3565 mirrors these laws which have withstood the test of time.

Existing case law also supports the passage of H.3565, primarily on free speech grounds. Ironically, prohibiting one from flying the American flag impedes the very rights under the First Amendment which the flag embodies and seeks to protect. Although some argue to the contrary, imposing such outright restrictions on expression, particularly against the greatest symbol of our country or state, constitutes prior restraints and offends basic First Amendment principles.

It is also worth noting that at the same time we are fighting this battle to protect one's right to freely wave the flag from a doorstep, the same free speech principles have been cited to protect its desecration when persons disagree with American policy. It seems a curious ordering of values that would forbid the display of the symbol of this country, while at the same time, defending the rights of others to deface, desecrate and destroy the same symbol. Had my constituents chosen to burn the flag, rather than display it in a dignified manner, it is very likely that a stream of lawyers would have lined up to protect their constitutional right to burn "Old Glory." It is time we afford the same deference to upholding the splendor of the flag.

Some opponents to the bill posit whether a private condominium association is required to protect these rights, since the question of whether one's constitutional rights have been infringed generally requires state action. Yet, while private entities generally enjoy greater latitude in constitutional matters, courts have unequivocally held that community associations must comply with constitutional principles, as well as certain federal and state laws, particularly when they look to state courts for enforcement of their regulations. In fact, is it is not unusual for state and federal governments to regulate certain activities of condo associations and enforce fair housing, anti-discrimination, and disability laws.

Courts in those states which have adopted laws on which H.3565 was predicated indicate that condominium regulations that restrict one's ability to express their patriotism violate basic standards of free speech. It is time Massachusetts, one of the founders of freedom in this great nation, join its sister states and adopt this sensible policy. It seemed that we were on our way to doing so last session. Some last minute amendments by the Senate that appeared to place the onus of challenging such restrictions on raising the flag back on unit owners, poisoned the bill's progress and brought the momentum to a halt. It is my hope that both branches can work collectively to put this law on our books.

The looming threat of a fine for anyone who respectfully displays the flag in front of their own residence is, quite frankly, insulting. As I stated at the hearing last week, the price to fly the American flag has already been paid by the courageous men and women who gave their lives on the greens of Lexington and Concord, the fields of Gettysburg, the beaches of Iwo Jima, the jungles of Vietnam and other battlefields throughout history. The price has been paid with the blood, sweat and tears of those who fought to maintain our democratic principles at home and throughout the world. Waving the flag is one way which we celebrate, honor and pay tribute to those men and women and the ideals of our country. Let's not countenance the continued suppression of this patriotic expression by failing to pass H.3565, a small, but very important bill.

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